SCO Files Subpoenas To Summon Stallman and Torvalds

By Jay Lyman
Nov 13, 2003 2:00 PM PT

Claims and counterclaims now have turned into dueling subpoenas, as IBM and SCO continue to spar over allegations that a Linux kernel promoted by Big Blue was copied from SCO's Unix System V source code.

Earlier this month, IBM issued subpoenas for SCO investors and analysts, including Bay Star Capital, Renaissance Ventures, Deutsche Bank and Yankee Group, in the court case that began in March when SCO claimed contract violations and sued IBM.

SCO spokesperson Mark Modersitzki told LinuxInsider that while the new subpoenas are not a direct response to IBM's subpoenas, SCO has filed its own subpoenas for Linux creator Linus Torvalds, Free Software Foundation president Richard Stallman, Transmeta and the Open Source Development Lab, both of which have employed Torvalds. In addition, the subpoenas include Novell, the original owner of the Unix source-code copyrights, and an executive at Linux set-top-box maker Digeo.

"We believe that all of the individuals that we subpoenaed have a recognized leadership role in the development of Linux," Modersitzki said. "Everybody knows they're a part of the Linux community, and certainly their testimony will be part of the case."

Coaxing Connections

IBM, which has hit SCO with counterclaims in the now US$3 billion suit, has accused SCO of dragging its feet when it comes to disclosing the source code at the heart of the debate.

"SCO has yet to show us any evidence that we have violated our agreements
with them," the company has said. Legal observers have indicated IBM might be going outside of SCO to get at the evidence, while others think Big Blue could be trying to disclose hidden ties between SCO and its supporters, which might include Microsoft.

Both SCO and Linux foe Microsoft deny a relationship beyond software licensing, which (according to a U.S. Securities and Exchange Commission filing last week) involved two payments to SCO for at least $8 million.

Big Blue Bullying?

SCO officials reportedly have called IBM's subpoenas -- directed primarily at industry analysts and investors who have vocally supported SCO's suit -- a case of bullying and have called Big Blue out for legal gamesmanship.

Phil Albert, a software legal expert and partner with Townsend and Townsend and Crew in San Francisco, told LinuxInsider that for its part, SCO likely is working to add in as many factors as possible to maintain a degree of uncertainty about the dispute.

Albert said the subpoenas and other legal maneuverings on both sides simply indicate efforts to clarify what is or is not in dispute early on in the process. While he referred to SCO's use of subpoenas as an integral part of the company's case, Modersitzki questioned IBM's actions.

"IBM said they were looking at the technical issues in the case, and their subpoenas don't reflect it," he said.

In Earlier News

Last month, SGI responded to SCO's threat to pull SGI's license by removing portions of the code in question and counterclaiming that SCO's position is "absurd." SGI's vice president of software, Rich Altmaier, wrote in the "Letter to the Linux Community" that his company has carried out a "rigorous internal process to ensure that all software contributed by SGI represents code we are legally entitled to release as open source."

Still, SGI did remove three "code fragments" -- 200 lines out of the total 1 million lines of SCO's alleged contributions to Linux -- and indicated it is on a mission to find and remove all code that "may arguably be related to Unix code," Altmaier's letter said.

Analysts said that while SCO might view removal of any code as a validation of its intellectual-property claims, the Lindon, Utah-based company still will have to prove that its Unix System V source code was the source of any contributions to Linux. Meanwhile, said analysts, the company is making more enemies along the way.

"If they continue doing things like this until the lawsuit goes to court in 2005, they will have everybody not liking them," Aberdeen Group research director Bill Claybrook told LinuxInsider. "There won't be anyone left that doesn't hate them."

SCO's Bad Blood

Yankee Group senior analyst Laura DiDio told LinuxInsider that SCO's fate lies in its courtroom success. The company is suing IBM and is defending itself against countersuits by Big Blue and Linux distributor Red Hat.

"In order for SCO to thrive, they've got to sell a product," she said, referring to SCO's current focus on its IP. "Certain organizations may not want to do business with them because they caused a conundrum here that the industry probably didn't need."